Academic freedom

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A court decision in the United States rescinding an order to turn over academic e-mails in response to a freedom-of-information request is welcome.

Scottish law exempts academic work from the freedom-of-information laws, but the rest of the United Kingdom does not. Ireland also exempts, and although the United States is commonly thought to, it turns out that, as so often in that country, it is left to the courts to decide. So, just what should researchers make of freedom-of-information laws?

American climatologist Michael Mann, now at Pennsylvania State University in University Park, probably knows the score better than most. And in the latest twist in a long-running saga over who should be able to read Mann's e-mails, a Prince William County Circuit Court judge in Manassas, Virginia, last week tore up an agreement that would have given the e-mails, with conditions, to attorneys for the American Tradition Institute (ATI), a conservative think tank. Judge Gaylord Finch also granted Mann's request to join the University of Virginia (his former employer and holder of the e-mails) in a lawsuit to block their release.

“Access to personal correspondence is a freedom too far.”

As both sides argue about whether the messages should ultimately be made public, the two legal decisions come as welcome news to those (including this journal) who believe that access to personal correspondence is a freedom too far. But the case highlights, yet again, how woefully unprepared the academic community is to meet this kind of challenge. This must change.

Certainly, the University of Virginia caved in too easily when it signed the agreement that granted the ATI access to the e-mails last spring. Given the tone of public statements that have come out of the ATI, the university should never have agreed to hand over confidential material of any sort.

But the university and its attorneys deserve credit for rectifying the situation. And despite appearances, to fight such requests is not against the letter, or indeed the spirit, of perfectly proper regulations designed to improve the accountability of public bodies. In fact, Virginia's freedom-of-information law provides the university with a solid basis to deny access to this kind of blanket request for e-mail records: academic work is exempt. This is as it should be, and the university should fight to protect that exemption now and in the future.

Yes, the public has a right to know, and yes, greater scrutiny of public spending is a good thing. But research practice is typically protected for good reasons too. To protect academic freedom is a foundation for intellectual property and copyright laws, while in court, both Mann and the university warned of the chilling effect of such demands on communication between scientists. Certainly, many researchers are more wary of e-mail today, and given Mann's experiences, who can blame them?

His case is high profile, but scientists and academics watching it (as well as the related attempts by Virginia's attorney-general Ken Cuccinelli to force the release of the same e-mails) should be cautious about drawing broad conclusions from how it may pan out. Even within the United States, the eventual ruling won't serve as much of a precedent outside Virginia. Federal agencies in the United States are subject to the federal statute, but state universities and research institutions must all play by the laws enacted in their own states.

Across those states it seems that this kind of academic exemption is common, but not universal, and its application would vary according to precedents set locally. In other words, it will be up to individual universities to work out how to address these kinds of cases as they emerge in future.

Mann's decision to join the lawsuit was spurred by the initial decision of the university to grant ATI access to his e-mails, a move with which he disagreed. He suggests that universities may be limited in what they can do to fend off these attacks, or that their interests may not always align precisely with those of individual researchers.

Mann is also getting help from a new fund especially designed to aid climate scientists hit by legal challenges, and organizations including the American Geophysical Union, the American Association of University Professors and the Union of Concerned Scientists have weighed in as well. All of this is good and useful, but it is no substitute for a solid institutional defence. Individual universities and research institutions everywhere should review their own policies and make sure they know the applicable laws as well as do those who would use them for mischief, or worse.


  1. Report this comment #29950

    Tim Gasser said:

    I am having trouble seeing how academic freedom is at issue in the Mann case.

    Professor Mann was an employee of a publically funded institution, using an email account provided him by the university. The terms and conditions of that use are pretty clear.

    There is at least some reason to believe that Professor Mann may have been involved in unprofessional, possibly unethical behavior, which is exactly the sort of thing that a FOIA request was meant to uncover. If he was not involved in such behavior, release of his email records should make that obviously clear. So in either case, there is a general benefit to the public. The only possible negative impact would be that to Professor Mann if he has something to be embarrassed or worried about. Could you have at least provided some specific examples of how academic freedom and research could be negatively effected? Claiming some "chilling" effect in researchers communicating with one another is supposition, not fact. Considering the widespread use of blogs and other internet mediums, I suspect the "chill" would be hardly noticable, if existing at all.

    Also, it might be nice to explain to us readers exactly what terrible experiences Professor Mann has undergone?

  2. Report this comment #29955

    Philip Levy said:

    To paraphrase Tim Gasser: There is at least some reason to believe that everyone may have been involved in possibly unethical behavior at some time. That is not sufficient reason to invade their privacy. Similarly, while it is possible that Prof. Mann could be embarrassed or worried by the release of his e-mails, that does not imply that he has done anything unprofessional or unethical. That is the classic police mentality — if you haven't done anything wrong then you have no reason to object to the invasion of your privacy.

  3. Report this comment #29956

    Bruce Krueger said:

    Tim Gasser's feeble rationalization for the ATI lawsuit is as old as the hills – why should a citizen object to being detained and searched if he has nothing to hide? Americans have heard it many times before in the context of civil and constitutional rights. Far from acting in the public interest, ATI is fishing for anything that, when taken out of context, may be seen to discredit Mann. Just as unchecked authority can be used to harass and intimidate, ATI is seeking to promote its ideology by using intimidation to suppress the free exchange of ideas among scientists when those ideas conflict with their extremist agenda.

  4. Report this comment #29963

    Tim Gasser said:

    As someone more Libertarian by nature than any other political label, I find being accused of a "police mentality" rather funny.

    Anyone working in the private sector is (or should be) aware that their email history is subject to review by their employer and by others under a court order. Exactly what is different about Mann's case? While you might feel that someone reading your work account emails is an invasion of privacy, that doesn't make it so. As far as I know, no one is asking to see Mann's private email account, only that belonging to his former employer. As his work account is not "private", there is no invasion of privacy. Which is why the courts are siding with the FOIA requesting party.

    The only thing weak here is the argument that the FOIA request is a threat to academic freedom. Threats that cannot be defined are not threats. I wonder if Mann (and Nature) are resorting to the "wrapping oneself in the flag" defense because they know they have nothing else.

  5. Report this comment #29997

    Matt Crook said:

    To Tim Gasser.

    There are several reasons why being able to make blanket requests for academic's emails is "chilling" and an invasion of privacy.

    First, most academics have just one email address and use if for both private and work. Clearly, from the point of view of the business community, this is unwise, but it is a fact. Therefore, a blanket FOIA request for an academic's emails will, however unintentionally, be an invasion of privacy.

    Second and more importantly, if you were in academia you would realise how much unpublished and non peer reviewed preliminary data and ideas are shared between collaborators on a project. Public access to this information would have several serious consequences. It would allow competitors access to data and ideas and allow them to either use them in their own research or enable them to publish papers before they would otherwise be able to do so. Given that grant proposals, job applications, tenure track approval and promotions all rely heavily on publications, giving the jump to your competitor(s) is career suicide. It would also make that data prior art in any patent application arising from that work, if data pertaining to that patent is made public before the patent application is filed. Similarly, someone else could use that idea or data in their own patent application strategy.

    Third, if an academic's emails were released to the public, or, in this case, more specifically to a politically partisan body, he or she would have no control over the context that they were presented. So, an informal comment between two scientists such as "I saw Prof. X's talk at the last conference and I'm not 100% convinced about his methods, but I'm sure it will become clear when it gets published" can easily become "Prof. X is committing fraud". That in turn can become an investigation into scientific misconduct that, even though Prof. X would most likely be exonerated, may destroy his or her career.

    Finally, all universities have mechanisms to investigate academics accused of scientific misconduct. Mann himself was thoroughly cleared of any misconduct by two Penn State investigations. Now, I'm sure that you easily say that Penn State was not impartial, it's investigation was flawed and so on, but I doubt that the ATI would be more thorough or impartial.

    So, if, as you desire, an academic's emails would be subject to FOIA laws and publicly available, academics would stop sharing information and ideas and communication with each other by email, the main form of communication used by scientists, for fear that they could be scooped on a paper, refused a patent application and falsely accused, either themselves or colleagues, of scientific misconduct. Given that scientific research succeeds almost entirely because of free communication between scientists, you would effectively shut down a large amount of research in the US. That sounds pretty "chilling" to me.

  6. Report this comment #29999

    Gordon Cash said:

    "The only thing weak here is the argument that the FOIA request is a threat to academic freedom. Threats that cannot be defined are not threats."

    All right, Mr. Gasser (and other commenters), let's get real here. The FOIA request is a threat to academic freedom because it is a barely disguised attempt to discredit research into climate change and harass anyone who performs it. Mr. Cuccinelli and ATI are going after Prof. Mann because he seeks to demonstrate anthropogenic climate change. Those parties consider climate change research abuse of public finds because they already "know" that no such thing exists.

    This is no different from the (thankfully mostly unsuccessful) attempts to compromise the teaching of evolution on the grounds that it ignores (nonexistent) contending theories. I don't know why no other commenter pointed this out, but as a Virginia resident and professional scientist concerned about the growing assault on science, I have followed this case from the beginning.

    Did I answer your objection?

  7. Report this comment #30014

    Christine Hamblin said:

    It is obvious why so many people have got hot under the collar about this subject – because of the strength of feeling on both sides of the divide and the obviously expressed wish by some to discredit others. However, there is a much deeper and more important issue here that has been noted by some but not fully addressed, and it is the issue of intellectual property. If anyone can demand e-mails under FOIA rules, intellectual property rights are immediately lost on any unpublished work to which they refer. This goes against all of the principles of rights to one's own work and it is completely unacceptable. I am all in favour of free-access peer-reviewed work but this bears no relationship to that.

  8. Report this comment #30037

    Colin Porter said:

    One would have thought that a publication of such very high repute like Nature would have welcomed and encouraged a spirit of openness and honesty, and would have supported the publication of these emails, if for no other reasons than to enhance Michael Mann?s reputation and with it his palaeontology reconstructions, which Nature has hitherto so enthusiastically promoted.

    Perhaps the phrase ?Mike?s Nature Trick? is inhibiting or worrying the editors of Nature. Could it be that the conduct of other organisations with whom Mann had dealings would also be exposed, were the emails ever to be published?

    And in the spirit of integrity and openness, I fully hope and expect that my post will not be moderated.

  9. Report this comment #30109

    Jim Bouldin said:

    Sorry Colin, but Mike Mann doesn't work in "palaeontology reconstruction". If you knew anything at all about the issue, you would know this. Most likely you've wandered in here because you've heard some big commotion about how this Michael Mann fellow was "hiding a decline" of some sort, as promoted ad nauseum by people like McIntyre and groups like ATI, based on distorting and lying about the content of previously stolen emails.

    Which is exactly why ATI wants the emails: so they can twist and distort their content to make Mike Mann and other climate scientists look, to the general public, as nefarious as they possibly can.

    As for Tim Gasser's comments, if he's the libertarian he claims to be, then he should be a little more concerned with stopping the (claimed) widespread practice of private firms having access to their employees' emails, rather than trying to further spread the practice to public universities. And the "wrapping in the flag" comment, well, that's just laughable.

  10. Report this comment #30331

    Colin Porter said:

    Thank you Jim Bouldin for pointing out my rather silly mistake of using the term ?Palaeontology Reconstruction.? I did of course mean ?Paleoclimatology Reconstruction,? but in my haste to write the comment before going to a meeting, I did not properly proof read my own work. In an effort to deflect attention away from the subject matter, I do hope you will not now comment on my punctuation, which in transmission to the Nature web site seems to reproduce quotation marks and apostrophes as question marks.

    It is unfortunate that Michael Mann is not as eager to correct his own mistakes. The Tiljander series, which he inverted to include in his work, is perhaps the most obvious example and has still not been corrected, even though he has been heavily criticised by two Finish paleoclimatologists, Atte Korhola and Matti Saarnisto. I do hope I have not misspelled their names lest I attract further derision. And the statistical treatment of the Hockey Stick graph has been shown to be heavily weighted by one single and rather dubious series in order to achieve the flat lining of the last thousand years prior to the last century. All but the most rabid promoters of catastrophic warming are now accepting of some contribution of the MWP and the Little Ice Age to the temperature record, the concept of which was an anathema just a few years ago. And of course there remains ?Mikes Nature Trick.?

    I do commend you for at least understanding the significance of my previous comment, even though your only purpose was to deflect attention away with ad hominems. My point, which is expressed more boldly in this comment remains that the reason the editors of Nature may seem to support the suppression of information against the spirit of transparency in science and specifically here with the Mann emails may be that they are afraid of becoming embroiled in the controversy if there are any embarrassing emails to or from staff or reviewers at Nature.

  11. Report this comment #30714

    Barge Panster said:

    It is funny that Micheal Mann should be at Penn State at this time. Another Penn State employee is under investigation for molesting young boys. What makes his crime so heinous is that he is a person placed in a position of trust. Obviously, if Mann did what he is accused of, it is an equivalent crime.
    Society holds academics to a higher standard. That is part of the social contract and the basis for 'academic freedom.' But, academic freedom isn't free. The respect garnered in academia is predicated on honest work. Without this, there can be no trust. Without this trust the social contract fails. When the social contract fails, then society no longer values what is being offered, i.e., no more public funding. More concretely then is why should the public fund your pensions? Think about it. You've broken your contract. That's your skin in the game.
    Unless all academics are like lawyers, you would think they would be especially concerned if it was apparent that a fellow academic had 'doctored' results to support a hypothesis. Yes, but there's the rub, isn't it? Who among you can cast the first stone? Just like Sandusky, because of that higher standard, Mann must be willing to reveal all. Anything less is a clear admission of guilt.

  12. Report this comment #67659

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  13. Report this comment #68873

    Amelia jo said:

    The article given here helps me a lot to know about freedom-of-information laws. I heard about different types of laws and this is the first time I am hearing about this law. I think this law is completely related to academic e-mails.

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